Pros and Pitfalls to the Expansion of Family Code section 3042 through SB654

Pros and Pitfalls to the Expansion of Family Code section 3042 through SB654

By: Taylor G. Fuller

Senate Bill 654 (“SB 654”), if passed, will have serious effects on the manner in which custody and visitation disputes are litigated. It would saddle children, 12 years of age or older, with the responsibility of choosing to whether to voice their preference by testifying in pending custody and visitation disputes.

What is SB 654?

Existing law requires the court to consider, and give due weight to, the wishes of a child in making an order granting or modifying custody or visitation where the child is of sufficient age and capacity. While there is no fixed age upon which a child gains the appropriate level of comprehension and maturity to offer testimony regarding their opinion, Family Code section 3042 subdivision (c) defines “sufficient age” as 14 years of age or older.

SB 654 signed by democratic Senator Dave Min of District 37 in February 2021, if passed, would instead require the court to permit a child who is 12 years of age or older an opportunity to testify regarding custody or visitation.

Why does it matter?

Evidence Code section 700 provides, “except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” Section 701 goes on to provide a witness must be able to: 1) Express him or herself well enough to be understood alone or with the assistance of an interpreter, and/or 2) Understand the duty to tell the truth.

Family Code 3042 subdivision (a) provides, “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody.”

The court has discretion to consider the preferences and testimony of a child under the statutory age where it is appropriate and consistent with the child’s best interest. (Fam. Code § 3042 subd. (c).) In re Marriage of Rosson (1986) Cal.App3d 194, the Court of Appeal upheld the trial court’s decision to consider the preferences of children ages 10 and 13 after soliciting testimony in chambers.

SB 654 will yield an increase in volume of minor children testifying in family law matters.

How will this affect family law?

Procedure

If passed, we can expect an uptick in the number of minor children who testify in their parents’ custodial disputes. Courts will be required to allow a child 12 years of age or older to offer testimony unless the court determines it would not be in the child’s best interest and states the basis for its finding on the record.

Where a child 12 years of age or older wishes to express a preference regarding custody or visitation: 1) The minor’s counsel, an evaluator, an investigatory or a mediator who submitted a custody or visitation recommendation must tell the judge that the child wishes to address the court; 2) The judge may make that inquiry in the absence of such request; or 3) A party or a party’s attorney may indicate to the judge that the child wishes to address the court. (Fam. Code § 3042 subd. (f).)

SB 654 further amends Family Code section 3042 to include the following:

Requires a form to be filed with the court, attested to by a person specified in subdivision (f), certifying that the child, has been informed of their right to testify
All children 12 years of age or older whose parents or guardians have a case in family court where custody and visitation are at issue shall be informed of their right to give input to the court.
If the court determines that it is appropriate pursuant to the best interest the child testify, the child shall be informed in age-appropriate language that they have a right to provide input regarding their preferences for custody or visitation, if the child wishes.
If the child who wishes to give input does not wish to speak to the court directly, arrangements shall be made for alternate methods of providing input and information.
If the child wishes to be heard, the court shall schedule a hearing within a reasonable time after receipt of the notification that the child wishes to provide input.
The court shall not make a final decision on custody or visitation without documentation in the record demonstrating that the child has been informed pursuant to this subdivision, any input the child wishes to give has been obtained in accordance with this section, and, if relevant, the hearing has occurred.
If the child wishes to have their testimony and preference remain private because of physical or sexual safety or concerns of retaliation, the court shall ensure the child is safe and is not retaliated against.
If the child discloses (to the Court or a governmental agency) that a parent or household member has abused, sexually assaulted, or battered them, the court shall give strong weight to the child’s preference.

Practice

Where the court permits testimony of a child under the age of 14, the court must: 1) Take special care to protect the child from undue harassment or embarrassment; 2) Restrict unnecessary repetition of questions; and 3) Ensure that questions asked are age-appropriate for the cognitive level of the witness. (Evid. Code §765 (b).)

California Rules of Court, rule 5.250 implements Family Code section 3042 and establishes the procedures and guidelines for soliciting examination from a child witness. Children’s participation in family law matters must be considered on a case-by-case basis. Where a child wishes to testify in connection with a custody or visitation matter, the court should find a balance between protecting the child, the statutory duty to consider the wishes and input of the child, and the probative value of the child’s input while ensuring all parties’ rights to due process.

In determining whether addressing the court is in a child’s best interest, the court should consider: a) Whether the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation; b) Whether the child is of sufficient age and capacity to understand the nature of the testimony; c) Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court; d) Whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision making process; and e) Whether any other factors weight in favor of or against having the child address the court.

The court is required to give a child’s testimony “due weight,” but is not bound by a child’s preference. In re Marriage of Mehlmauer (1976) 60 Cal.App3d 104, the Court upheld a custody ruling made contrary to a 14-year-old child’s expressed preference on the ground that the choice was not made with mature reasoning.

Conclusion

Should SB 654 become law, we can expect an increase in the amount of child witnesses. While a child’s testimony may give the court a firsthand understanding of a child’s preference, the potential effects could be detrimental. The child’s best interest should be of primary concern—whether one chooses to solicit child testimony or not.

Born and raised in Santa Barbara County, Taylor Fuller is a member of the Boards of Directors of the Santa Barbara County Bar Association, Santa Barbara Women Lawyers, and Santa Barbara Barristers. She is an attorney with Herring Law Group, a family law firm serving “the 805” and beyond with offices in San Luis Obispo, Santa Barbara, and Ventura Counties